3. Failed Gifts - Wills and Admin PDF

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Failed Gifts A gift will fail where: 1. There has been ADEMPTION

2. The Gift LAPSES

3. A Beneficiary or the Beneficiaries’ Spouse/Civil Partner is a Witness to the Will 4. DISCLAIMER 5. FORFEITURE

i.e. Where the Testator no longer owns the Property when he dies; o NB: if a specific gift is made e.g. “my car”, “my watch”, but that asset is sold and a replacement “car” or “watch” bought, there is a presumption that the testator meant to dispose only of the asset he owned at the date of the will and not the replacement, therefore the gift of the replacement will be adeemed.  Where an asset changes in substance rather than name or form. o E.g. if A sells shares, and uses the proceeds to buy shares in a different company, this would be a change in substance and the gift will be adeemed. o HOWEVER if A owns shares in a company and the company is taken over, the gift will have merely changed in substance, and not form, and will not be adeemed.  i.e. The beneficiary dies before the testator: o Unless the will is worded as passing to the holder of a particular office. o HOWEVER gifts to the testator’s direct descendants (i.e. children, grandchildren etc.) will pass to the issue of the intended recipient if that person dies before the testator (WA 1837, s33; 29.5.2.5 at p363). o With regards people, a will is construed on the date it is made i.e. a gift to the “eldest son of X” is a gift to the eldest son at that time. The gift fails if that person then dies prior to the testator. The gift does not pass to the eldest son at the time of the testator’s death. o If beneficiary and testator die at the same moment e.g. in a car crash, the law assumes the oldest died first (s184 LPA 1925).  Gifts to joint beneficiaries will not lapse unless ALL beneficiaries die unless the gift contains words of severance e.g. “to A and B in equal shares”.  Any gifts to that beneficiary will be invalid (s15 Wills Act 1837).

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i.e. If a Beneficiary Refuses a Gift i.e. if the beneficiary kills the testator (murder or manslaughter).

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Unless a contrary intention appears by the will a person who Disclaims or Forefeits an entitlement under a will will be treated as having predeceased the testator (s33A Wills Act 1837).  Therefore if the intended beneficiary is a direct descendant, the gift will pass to their issue.  Otherwise the gift will simply pass into the residue.

The effect of a gift will alter by: Divorce  Will cause any provisions of a will which envisage a testator’s spouse surviving him to act as if the divorced partner had already died (s18 Wills Act 1837).

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If there is:

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i.e. if there is no substitutional provision the gift will fail. If there is a substitutional provision e.g. “I leave all my property to my husband, however if my husband dies before me, my property shall pass to my children equally”, the substitutional provision will apply. No residuary devise or bequest (e.g. if the terms of the will do not say “remainder to X” etc), or; If the gift that lapses or fails is a part of the general residue.

The gift will pass to those entitled on an intestacy....